Legal authority can be politicized, but tonight reminds me of some big differences between law and politics.
The Democrats need to flip 23 seats to take control of the House. There’s a lot of hopeful GOP thinking that the Dems can be kept slightly under that amount, with Republicans retaining a (very slim) majority. I am not a good enough analyst of electoral politics to know whether that is realistic or not; many smart people who are seem to think there’s not much hope. They do suggest, though, that the damage will be contained: No blue wave, GOP holds the Senate, maybe even gains a seat or three, and loses the House by a sliver — Dems flip 28 seats or thereabouts.
From a political standpoint, I suppose that would be looked at as a Republican win. Surely the White House would say so, and it would defy historical trends about midterms in the second year of a presidency.
But that political win would be a big loss as far as the law is concerned. If Republicans lose the House, even by one seat, control of all committees is transferred to Democrats. And with control goes subpoena power.
I don’t mean to suggest that congressional oversight is a legal process, the way judicial proceedings and law-enforcement investigations are. But congressional subpoenas are legal process, enforceable by contempt — including contempt prosecutions (although if Democrats take control, they should not hold their breath waiting for the Trump Justice Department to respond to their inevitable criminal referrals). And these days, oversight more and more resembles criminal investigation, with Congress attempting to use its more limited investigative powers to probe misconduct that the executive branch’s investigative agencies are slow (at best) to address.
If Democrats win a House majority, even by a margin that the political analysts regard as a disappointment, you can bank on this: The congressional probes of possible investigative abuses by the Obama Justice Department and FBI in connection with the 2016 election will be kaput — over. There will undoubtedly be some feverish GOP activity in the lame-duck period to push out some interim reports, but that will be it. If you want final judgments, they will have to await the eventual report of DOJ inspector general Michael Horowitz — in addition to whatever, if anything, is being done by Utah U.S. attorney John Huber, the prosecutor Attorney General Jeff Sessions assigned to examine the FISA surveillance of former Trump campaign adviser Carter Page. How long will that take? If past is prologue, it could be many months.
While the investigations of the investigators would be over, the investigations of President Trump will be in full swing — his businesses; any Trump conglomerate reliance on Russian financing; claimed violations of the emoluments clause; his tax returns; the alleged damage done by the deregulation policies to the environment, public health, worker safety, minority rights, etc.
This anti-Trump investigative aggression in a Democrat-controlled House might be a bad strategy. Smarter Democrats know it could turn off the public and help Trump’s 2020 reelection bid. But the base wants these investigations — and even impeachment, if they can get it — and the base would be served. If the Democrats win the House, no matter by how little, the Left will call the tune. It will have subpoena power, and the House committees will suddenly have a media megaphone the GOP-led committees never did.
Interestingly, if Democrats take over the House, there is only one way we would get disclosure from the Justice Department and FBI of documents pertaining to the 2016 Trump-Russia investigation that the Republican House committees were pushing for. That would be if President Trump ordered disclosure.
But then again, the president could have ordered disclosure any time these last two years. Yet, he didn’t. Would a full-court press of Democratic investigative pressure change his mind? We might be about to find out.